CNN BURDEN OF PROOF

Timothy McVeigh Fights for His Life

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. (BEGIN VIDEO CLIP)

ROBERT NIGH, MCVEIGH ATTORNEY: We are extremely disappointed in the court's ruling.

SEAN CONNELLY, PROSECUTOR: Judge Matsch's ruling was a powerful and eloquent statement not only about the law associated with this case but about the tremendous harm and devastation caused by Timothy McVeigh.

(END VIDEO CLIP)

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: A federal judge denies Timothy McVeigh's stay of execution. Now, with less than four days before his date with death, his legal team takes its battle to the Court of Appeals for the 10th Circuit. How will the scales of justice tip in the case of the worst terrorist act on American soil?

(BEGIN VIDEO CLIP)

JOHN ASHCROFT, ATTORNEY GENERAL: The ruling of the court in Denver, Colorado, makes unmistakably clear that we not only have a guilty defendant but that the fairness and innocence of the system is sufficient and is complete.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Convicted Oklahoma City bomber Timothy McVeigh's fight for life is not over yet. This morning in Denver, his lawyers filed an appeal from U.S. district court judge Richard Matsch's denial of his request for a stay of execution. Today's petition was filed in the United States Court of Appeals for the 10th Circuit. It's an ironic twist in this case, as the Oklahoma City building which was bombed six years ago was named after a former chief judge of the 10th Circuit Court of Appeals, Alfred P. Murrah.

GRETA VAN SUSTEREN, CO-HOST: Time is running out for McVeigh. He's scheduled to be executed Monday morning at 7:00 AM Indiana time in the federal prison death chamber in Terre Haute. If McVeigh is executed before June 19th, the date scheduled for Juan Raul Garza's execution, he will be the first federal prisoner executed in 38 years.

COSSACK: Joining us today from Boston is Scott Mendeloff, a former member of the federal prosecution team in the McVeigh trial. From Philadelphia, we're joined by former federal judge Arlin Adams.

Judge, first to you. Yesterday the lawyers filed their notice of appeal. Can you take me through, mechanically, what happens in the Court of Appeals, the federal Court of Appeals? When's the first that the judges hear about it, and how does it arrive in chambers?

ARLIN ADAMS, RETIRED FEDERAL APPELLATE JUDGE: Well, the clerk of the court will take the notice of appeal, as the document is referred to, and bring it to the chief judge for assignment. The chief judge will decide whether to refer it to a panel of three judges, three of his colleagues, or in some cases, he or she may decide to refer it to the entire court. That is known as the court "en banc," consisting of all the active judges.

Of course, I can't tell you now which way it will go, but it will be one of the two. And then the judges will have to decide whether they want to hear counsel, and if they do, when they want to hear counsel. Obviously, it will have to be done very promptly. And my guess is that you will be hearing before the end of the day, and certainly no later than tomorrow, which course is going to be pursued.

VAN SUSTEREN: Judge, usually both sides are heard. Is it your expectation -- and I underline "expectation" because no one knows what this court will do. But is it your expectation that the United States Court of Appeals will ask for some information from the government on this case?

ADAMS: It might. It might, but the record is pretty complete right now, and they have a pretty good opinion of Judge Matsch. My experience is that they have a great deal of confidence in Judge Matsch. He not only reviewed this particular matter, but he was the presiding judge at the complete trial.

COSSACK: Judge Adams, what about the idea that perhaps the 10th Circuit may just decide out of hand not to have a hearing and perhaps not even require briefs from the government but just may turn it down based on the petitioner's brief? Is that something possible?

ADAMS: I think it is possible. I don't know whether they want to do that in a high-profile case, but it would not surprise me. And if the court did that, it would enable Mr. McVeigh and his attorneys to seek a very prompt petition for certiorari to the Supreme Court of the United States.

COSSACK: Now, what would happen if, in fact, a hearing was scheduled immediately -- let's say tomorrow -- the government was ordered to reply by this afternoon, the hearing was scheduled and Mr. McVeigh lost and petitioned for an "en banc" hearing before the 10th Circuit? That is, requesting a hearing before all of the judges? Would that have the effect of delaying the execution?

ADAMS: I don't think so because I think the chief judge, under those circumstance, would call a telephone conference of all the active judges and try to ascertain whether he could get a ruling from them via telephone.

VAN SUSTEREN: Judge, ordinary course of business, the Court of Appeals has plenty of time to look at things and consider it. And this is a very different case. You've got an execution date. Take me sort of behind the scenes. You know, what's it like for the judges when something like this, sort of an emergency matter, shows up at the Court of Appeals?

ADAMS: Well, I'm sure they're all going to be available in their chambers and available for a telephone call from the chief judge. They're aware of the high public interest in this matter, and they're patriotic citizens, and they're going to cooperate fully so as not to delay this thing in any possible way.

VAN SUSTEREN: Bernie, obviously, the prosecution's in the driver's seat on this one, the defense having lost yesterday in district court. What's the strategy for the defense lawyers?

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: I was looking over the appellant's brief, and essentially, what their pitch is -- "You haven't given us sufficient time to review 3,000 documents." On document 2,999 could be an FD-302, and FBI report indicating that someone else played a role in the bombing with McVeigh. That could serve to mitigate...

VAN SUSTEREN: But that...

GRIMM: ... McVeigh's sentence to life. That's a -- that's a big...

VAN SUSTEREN: But that raises...

GRIMM: ... difference.

VAN SUSTEREN: That raises an interesting question. This is the thing that Roger and I were talking about before the show, is that Judge Matsch said if there -- essentially -- I mean, what people are saying is, "If there are other people involved, who would know it better than Timothy McVeigh?" But that doesn't seem to be -- that's not contained in the record. I mean, how do you -- how do you counter that aspect of it?

GRIMM: Well, the way I would counter it, and it seemed to be suggested in the appellant's brief, is "We need time to review these documents. We need time for further investigation. These 3,000"...

VAN SUSTEREN: "Ask your client" is the...

GRIMM: Yeah. VAN SUSTEREN: I mean, that's the...

GRIMM: "Ask your client." Unfortunately -- that's not the way our system of justice works. It's a sad commentary on this case. He's getting the ultimate penalty. If you're going to put him to death, guarantee, make everybody certain that this is the guy, and he acted alone.

VAN SUSTEREN: You know how I'd answer that by the defense lawyer? It's not -- it's -- the prosecution ultimately had the burden to prove the case, not to sort of extract it from the defense. And if there's evidence of John Does out there and the government sat on it, and if it would go to mitigating the issue of death penalty, it's still the government's burden.

COSSACK: You know, Scott, that's the argument that Bernie and Greta are talking about. I mean, that is -- I think if it disturbs anybody, perhaps it disturbs lawyers. I don't know how many other people it disturbs, this notion of kind of coming to the conclusion that Judge Matsch did with -- and cutting off lawyers who are in good faith saying, "Look," you know, "we didn't want to be in this position. It wasn't us that got ourselves in this position. It was the government that failed to turn over these 4,000 pages. And now what we're doing is what we should be doing, following up on it. And what we've had happen is a judge that says, `You know, you can follow up on this stuff forever, but it's never going to change anybody's mind.'"

VAN SUSTEREN: Plus they found the documents in January.

COSSACK: Right.

VAN SUSTEREN: There's that element there, as well.

COSSACK: You know, I think, if anything, that's the part -- I know that was the part that -- the reason that I thought there would be a short delay in this case. I don't know if I -- I will tell you, I never thought they would be successful, but at least in terms of getting that extra time -- how do you -- how do you answer that, those people that would say, "Gee," you know, "what would have been the down side to give them 30 more days?"

SCOTT MENDELOFF, FORMER MCVEIGH PROSECUTOR: Well, there's difference between how I would personally answer it and how the judge answered it. But you know, the judge did address that. And in his ruling, he said, "You know, there's an indication from -- from trial that that would not have mattered." And one of the key principles in our system of justice is the principle of finality. Mr. McVeigh already received a trial in this case, and at trial, the defense did present evidence of other people being involved. The jury rejected that as a reason for showing any kind of mitigation.

VAN SUSTEREN: All right, and you know what?

MENDELOFF: And Judge Matsch... MENDELOFF: And you know what? I -- you know, I got to tell you, in response to that -- and then I'm going to take a quick break. I'm going to have the last word on this. The finality certainly is important, and there's very little sympathy for Timothy McVeigh. I certainly don't have any. But the question of finality also is that the prosecution's not supposed to sit on some documents. They found them in January. They didn't turn them over till May. So you know, you weigh both sides.

We'll take a quick break. If the court slams the door on McVeigh's appeal, the next step could be to Washington, the United States Supreme Court.

Don't go away.

(BEGIN LEGAL BRIEF)

Florida governor Jeb Bush turned down an early request for clemency for Lionel Tate, the 14-year-old who was sentenced to life in prison for the death of his 6-year-old playmate. Bush refused to waive the two-year period that Florida law requires a convict to wait before appealing for state clemency.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

SUSTEREN: With a Monday, 7:00 AM, execution planned, the clock is ticking against Timothy McVeigh. McVeigh's appeal of yesterday's ruling will be reviewed by the United States Court of Appeals for the 10th Circuit. If the appeals court doesn't reverse Judge Matsch's ruling, the McVeigh team could turn to the United States Supreme Court. Justice Stephen Breyer, a Clinton appointee, overseas cases which arise out of the 10th Circuit.

OK, Neal, you clerked for Justice Breyer. I asked our first guest, Judge Adams, what the procedure is. Suppose that the McVeigh lawyers lose in the 10th Circuit, they go to the United States Supreme Court. Walk me through the procedure.

NEAL KATYAL, FORMER SUPREME COURT CLERK: Yeah. Well, what you can expect to happen even now is that the clerk of the U.S. Supreme Court is on the phone with Timothy McVeigh's lawyers, asking for draft briefs that might be filed in the U.S. Supreme Court. If the Court of Appeals denies McVeigh's claim, those filings become the filings of McVeigh. At that point, they're referred to the Justice in charge of that particular Court of Appeals, which is Justice Breyer.

Justice Breyer will almost certainly refer this matter to the entire conference of all nine Justices.

COSSACK: But he does have the authority, the single Justice, to put things on hold.

KATYAL: He does have the authority, but most Justices in this very collegial Court don't put things on hold on their own. What they do is instead, they write a memo to all nine Justices saying, "Here's how we think -- here's how I think this matter should be handled. What do you think?"

SUSTEREN: How many would it take to put a stay on the execution? How many...

KATYAL: This is an interesting matter of -- arcane matter of Supreme Court law. It takes four Justices to vote to hear a case, to grant certiorari. But it actually takes five Justices to stop an execution temporarily, to stay an execution. So even if four Justices on the merits think that McVeigh's case should be heard, there still needs to be an additional vote.

SUSTEREN: Is this by rule, by Court rule?

KATYAL: This is by -- by U.S. Supreme Court...

SUSTEREN: So there's no way...

KATYAL: ... rule.

SUSTEREN: ... around that issue.

KATYAL: Well, what happens is, because, again, this Court is a collegial one, and what's happened in other Courts, as well, is a fifth Justice will give a courtesy vote to the other four to permit the stay to issue and the case to be heard by the U.S. Supreme Court.

COSSACK: Neal, let's suppose that this matter does not get before the Supreme Court, for whatever reason, until Monday morning at 5:00 AM, a few hours before the execution is to be heard. And Justice Breyer looks at it and says, "You know, I want to stop this for at least a day, until I can get the rest of my colleagues together" -- hypothetically. Could he stop it?

KATYAL: Justice Breyer certainly has the power to do that. Whether he would or not...

COSSACK: Would exercise it in that direction is something else. But he could come in and say, "I will stop this, and then I will immediately canvass my fellow colleagues on the Supreme Court to see if I can get the rest of the votes." But he could at least stop it temporarily.

KATYAL: Sure. That's possible, but precisely because of that, Justices, when they're -- when they see cases coming down the road on an emergency basis, start looking into the matter now, even before it reaches their desk formally, to try and reach a tentative view of the matter.

SUSTEREN: Judge Adams, the 10th Circuit -- do you think, at this point, they're having any sort of procedural communication with the United States Supreme Court, in terms of transferring the record, even though they haven't even decided whether they're going to entertain the case or not? I mean, because of the urgency of the 7:00 AM execution, what -- what's the -- what's the communication like going on?

ADAMS: Well, not the judges. The judges of the 10th Circuit would not communicate with the Supreme Court of the United States. The clerk of the court probably has been in communication with the clerk of the Supreme Court to make sure that there is no delay in transferring the record of any of the documents that are necessary for the Supreme Court to review in order to reach a decision. But it would be highly unlikely for a judge on the 10th Circuit to participate in that.

SUSTEREN: I didn't mean to -- I must have misspoken. I didn't mean to say -- but you know, we're in a very different age of sort of where you put the Pony Express -- I mean, we've now got, you know, the speed of the fax machine and everything else. I mean, how -- how do these things -- the record's going to be transmitted, do you think, by fax machine, or they -- what do you think is the actual mechanics on that?

ADAMS: Well, it may already be en route, as far as I know. The attorneys for Mr. McVeigh are pretty innovative, and they probably have -- made sure that all the material that the Supreme Court may require is either there or en route. If they have to use a fax machine to accomplish that, I'm sure they'll do it. But that will not be an impediment, in my judgment.

COSSACK: Scott, what's the government doing at this stage? Are they preparing to make an appearance in front of the 10th Circuit, or are they thinking about the Supreme Court?

MENDELOFF: Knowing how complete Sean is, what he's probably doing is reviewing the brief that was just filed and writing a response, so that if asked for a response, he'll have one ready to file immediately. Sorry. Go ahead.

SUSTEREN: Bernie, defense (INAUDIBLE) still in the 10th Circuit. Do they file -- have they written their pleading to the United States Supreme Court? Likely?

GRIMM: Absolutely. It's already -- it's already written. There's already been numerous drafts written. It's ready to be filed in the Supreme Court at a moment's notice. And they'll be ready to get on a plane to get out here and argue it.

ADAMS: Well, I imagine that the documents that they're going to file are already in Washington. One of their colleagues or associates have those documents, and on a signal from Denver, the documents will be filed. They won't waste time on anything like that. They're all prepared. I feel reasonably certain of that.

COSSACK: All right, let's take a break.

When we come back: an unintended byproduct of the McVeigh case -- legal precedent. How this week's rulings could shape federal death penalty cases in the future.

Stay with us. (COMMERCIAL BREAK)

(BEGIN Q&A)

Q: What item do Daviess County, Kentucky, officials want to auction off over the Internet?

A: A jail. Officials have not yet agreed on the asking price for the 115-year-old jail, which was the site of two hangings in 1905.

(END Q&A)

COSSACK: If these are to be the final days of Timothy McVeigh's life, they're destined to chronicle a pivotal period in federal law. The convicted Oklahoma City bomber is scheduled to be the first federal inmate to be executed since 1963.

Neal, there's been a lot of twists and a lot of surprises in this case. Probably not the least of which is, is the failure of the FBI to turn over all the material. In a high-profile case like this, we have to be, you know, highly surprised at the negligence of the FBI. Is this going to have any impact on the future of the federal death penalty?

KATYAL: Yeah, I think it will. The fact that it happens here, of all cases, casts some question about what happens in other, less- high-profile cases. I think it will give some force to Senator Leahy's call for an Innocence Protection Act, now that he's the chair of the Senate Judiciary Committee. It does call into question a little bit FBI practices and procedures in handling information and what gets turned over to the defense. This is going to be a big issue as the federal death penalty evolves.

SUSTEREN: Scott, the wild card, I think, in all of this may be the Terry Nichols case. The United States Supreme Court recently did something in that case. Can you explain what they did and whether that'll have any impact here?

MENDELOFF: Well, Mr. Nichols had filed an appeal from his denial of habeas to the Supreme Court, and usually, those appeals are routinely denied, unless there's anything to them. But in this instance, the Court actually asked the Justice Department to respond to the briefing. That doesn't mean the Court is going to rule in favor of Mr. Nichols at all, but it's just one step more that they usually don't take.

SUSTEREN: But what's sort of interesting, though, there, though, as I recall, is that Michael Tigar, Terry Nichols's lawyer, had filed with the United States Supreme Court, saying that there's these FBI documents had just recently surfaced. And it seemed to signal, at least -- and maybe it's routine. Maybe Neal can tell us, but that the Supreme Court had -- at least their interest was piqued enough to say to the Justice Department, "Hey, what about this?" And that may be at least a little bit of a sign that -- to McVeigh's lawyers that there's a one-in-a-million chance here. MENDELOFF: Well, you know, I think that they -- the Supreme Court may well have been being careful, and appropriately so. But you should note that a portion of Judge Matsch's ruling really addressed this. Judge Matsch said in his ruling, the documents that he's reviewed that have been presented to him are really no different than loads of other documents that were turned over to the defense prior to the case originally, documents reflecting people who had strong anti- government views who were threatening to blow up federal buildings. And those documents were not used...

SUSTEREN: But there were new...

MENDELOFF: ... by the defense.

SUSTEREN: But there were new names, were there not, as potential John Does, at least, you know, sort of a wild suggestion there might be? I mean...

MENDELOFF: There may -- the judge didn't say. There may well have been new names. But the way these cases are usually assessed is whether or not this is any different, whether this is a difference that makes a difference. And here it's likely that the Court will do what -- what happened below already once in the Nichols case and say, you know, "Unfortunately, this is just cumulative. It's more of the same, and the defense had the opportunity to raise evidence just like this at trial, and either they didn't do it or it didn't work."

COSSACK: Neal, can we read anything from the fact that the Supreme Court ordered -- ordered the solicitor general to file a response to Nichols's petition under habeas?

KATYAL: I wouldn't read anything into it. The solicitor general's office, which is the office that represents the government before the U.S. Supreme Court, routinely declines to file, as a first matter, papers before the U.S. Supreme Court in cases -- in appeals. And every other Monday or so, the U.S. Supreme Court asks for the views of the solicitor general on a case or the other, many of which never get heard and go away. So this is not -- this is not a big or unexpected development, particularly in a matter of this gravity.

SUSTEREN: Bernie, so the big -- the big loss really was yesterday, when we look at the Court of Appeals, the Supreme Court, for Mr. McVeigh.

GRIMM: For McVeigh. And I think Neal knows more than me on this, but I think if you're going to win, the 10th Circuit was where it was going to happen.

SUSTEREN: In the 10 Circuit or the...

COSSACK: You mean the trial court.

SUSTEREN: ... or the trial court?

GRIMM: Trial court, rather. The -- Judge Matsch's opinion. But what we discussed earlier is Matsch may have written too much in that opinion. He may have built in -- he may have built in an issue for McVeigh's attorneys. I don't know.

SUSTEREN: Judge, what's it like to be a judge sitting on a case, life or death of so national importance? What do you think it's like?

ADAMS: If you're addressing the question to me, no matter what a judge says, that each case is an important one, the judge reads the newspapers and watches television, and he or she is aware of high- profile matters and has a tendency to prepare extra hard for those matters, to be very, very careful. And I suspect that's what all the judges will be doing in this matter until it's finally, finally resolved.

SUSTEREN: All right, that's all the time we have for today. Thanks to our guests, and thank you for watching.

COSSACK: Join us again tomorrow for another edition of BURDEN OF PROOF. See you then.

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